The principal objections to the contention of the importers relate to matters of detail în administration based upon alleged difficulties in administering the law as interpreted by the importers. I do not think such difficulties exist, but if they do it is entirely clear that matters of convenience must yield to matters of right. No impediment has been suggested which cannot be readily removed by the officers of the customs. If the interpretation now placed upon the law is correct it may require greater care and diligence upon the part of these officers, but nothing more. No fault is found with the protest either as to form or time of service, and the importers have complied with every provision of the law necessary to enable them to obtain relief. The case in this regard is a simple one. The collector has levied a duty upon goods which were entitled to enter duty free. The importers duly protested, pointing out the precise injury complained of. This is all the law required them to do to protect their rights. They have rights and they should be protected.

This cause has been treated thus far, as it was treated upon the argument, as if the fact found by the board, that the glass was broken in transitu, was fully established by the proof. At the close of the argument the point was taken that the decision of the board must be affirmed for the reason that there was no evidence to support this finding, and, therefore, that this court must disregard it. The facts bearing upon this proposition are as follows: The importers in the protest allege that on the voyage considerable quantities of the glass became broken into pieces which were fit only for remanufacture and they say:

"We are prepared to prove the number of pounds of the glass covered by this entry that have been broken so as to be unfit for use, and we claim it is your duty to ascertain and determine such number of pounds and reliquidate the entry accordingly."

The return also contains the following entry:

"Schedule of protests to accompany letter of Sept. 22d, '91. Window glass and pieces. Semon Bache & Co."

The decision of the board states:

"The importers in each case appeared before the board of general appraisers and offered to produce evidence showing the amount of damage done to each package or case, and this evidence was held by the board to be irrelevant, and was excluded on the ground that allowances for damage of the kind under consideration were abolished by section 23 of said act of June 10, 1890. The case is one which would fall directly within the terms of section 2927 of the Revised Statutes, but for the repealing effect of section 23 of the act of June 10, 1890, which latter statute, in our judgment, prohibits us from entertaining such a claim in any form whatever. Holding as we do that the claim is one, in legal effect, which seeks a reduction of duties on account of damage to a portion of the merchandise, we decide that it is not well taken. The protests are accordingly overruled on this ground, and the collector's de cision is affirmed in each case."

The proceeding before the board was in the nature of a demurrer by the collector to the protest of the importers. In legal contempla. tion the collector's position was this:

"I concede all you say in your protest, but it is bad in law. I object to your taking up my time and that of the board by the production of irrelevant

and immaterial testimony, for when it is all in, when you have proved all that you allege in your protest it will avail you nothing, for the reason that your claim is one for a reduction of duties on account of damage and such allow ances have been abolished by law. Your broken glass is not entitled to free entry and the board cannot entertain your claim in any form whatever. There is no law for it."

The board took this view, and, entertaining the opinion of the law they did, their action was perfectly natural and proper. Should the collector now be permitted to take advantage of the absence of proof which, in effect, was rejected on his motion, in order that the point of law which lies at the threshold of a recovery might be determined? It is thought not. If the point had been made before the board they would undoubtedly have required an admission from the collector or in some other way would have obviated the difficulty. But it is perfectly evident that all parties regarded the point as sufficiently presented, and nothing to the contrary appeared until the cause had been argued on the merits and was about to be decided in the circuit court. Indeed, it would seem doubtful whether under the provisions of section 15 of the act of June 10, 1890, such a point can be raised at all by a respondent. This action provides in substance that any person, whether importer or collector, who is dissatisfied with a decision of the board may ap ply "for a review of the questions of law and fact involved." He must, moreover, file "a concise statement of the errors of law and fact complained of."

No

In this case the board finds as matter of fact that "a considerable quantity of said glass was damaged by being broken during the voyage and before arrival at the port of New York in such manner as to be unfit for any other use than to be remanufactured." error was pointed out by the collector in this finding. Indeed, no error of fact was assigned by either party. As the facts were wholly undisputed it may well have been that the board thought it unnecessary to attach the testimony. If the collector had raised the point in the manner required by the statute it may be that the board would have returned either testimony or proof of an admis sion that would obviate the present difficulty. It would certainly be a most novel proceeding if a respondent can succeed in having a judgment in his favor affirmed because of an error committed by the court below. The anomalous aspect of the proceeding would not be diminished should it appear further that the error was one which the trial court made upon the motion of the respondent and against the strenuous objection of the appellant. So far as the question affects the case at bar I can see no reason in favor of sustaining the objection and many reasons why it should not be sustained. It is for the interest of all, importers and collectors alike, that this question should be decided speedily. Why should the board of appraisers be burdened with the preparation of another cause with its consequent labor and delay? If it is held that the evidence is necessary, weeks may be required to produce it, for the proceeding would be in the nature of an accounting, and should the court ultimately sustain the board, the testimony will be wholly unavailing. On the other hand no injury can happen to the govern

ment, for no money can be refunded except upon proof of the facts stated in the protest. So far as the question affects the practice in such cases generally it is manifestly for the interest of all that such questions should be determined with as little annoyance, expense and delay as possible. It was partly to produce this result that the board was established. If the practice before the board is to be more cumbersome and involved than under the old system the public will reap little advantage by the change. Where the board is of the opinion that the protest is frivolous on its face or that it has absolutely no law to sustain it I can see no reason why they should not say so and have the question of law thus raised disposed of in limine without incumbering the record with a mass of testimony which may in the end turn out to be mere worthless rubbish. The decision of the board should be reversed.

LALANCE & GROSJEAN MANUF'G CO. v. HABERMANN MANUF'G CO. (Circuit Court, S. D. New York. January 5, 1893.)

PATENTS FOR INVENTIONS-INTERLOCUTORY DECREE APPEALS-SUPERSEDEAS. Upon an appeal to the circuit court of appeals from an interlocutory decree sustaining a patent, declaring infringement, and granting an injunction, defendant is not entitled to a supersedeas as a matter of right, but the matter rests in the discretion of the circuit court, and the injunction will be stayed only under exceptional circumstances. Societe v. Blount, 51 Fed. Rep. 610, disapproved.

In Equity. Bill by the Lalance & Grosjean Manufacturing Company against the Habermann Manufacturing Company for infringement of a patent. The patent was heretofore sustained, infringement declared, and an injunction granted. See 53 Fed. Rep. 375, 380. The case is now heard on a motion to stay the injunction pending an appeal to the circuit court of appeals, under section 7 of the judiciary act of March 3, 1891. Denied.i

Robert N. Kenyon, for the motion.
Arthur v. Briesen, opposed.

COXE, District Judge. This motion presents the situation which usually arises where a patent has been sustained. The defendant asserts that his business will be irreparably injured if he is compelled to stop infringing. The complainant, on the other hand, is equally strenuous in contending that his business will be destroyed if the infringement continues. If the two parties stood on equal footing, the question would be a difficult one. But they do not. The complainant is the owner of a valid patent and the defendant is a tres

'Subsequent to this decision the respondent applied to the supreme court of the United States for leave to file a petition for a writ of mandamus to the circuit judge, requiring him to allow a supersedeas, but that court denied the application, holding, as did the circuit court, that the granting or refusing of a supersedeas was within the discretion of the circuit court, and that the supreme court had no jurisdiction to control that discretion by a writ of mandamus. See 13 Sup. Ct. Rep. 527.

passer. The one is right and the other is wrong. In such circumstances the former is entitled to relief. The rule as enunciated in Societe v. Blount, 51 Fed. Rep. 610, 61 O. G. 1484, is not, as I understand it, the law of this circuit. The injunction has sometimes been suspended here after final hearing, but only in exceptional cases. This is not such a case.

I am convinced that the rights of the public will not suffer and that the defendant's employes will not be disturbed if the usual course is adopted here. The defendant can enamel its goods in any way it sees fit, and the record shows that the ways are numerous, so long as it does not use the patented process. That any injury will result, other than that which generally follows where an injunc tion overtakes an infringement, I cannot believe. The injury here will not be unusual or exceptional. A bond will offer little or no in demnity. An injunction is the complainant's only available remedy. I think the case should take the ordinary course.

The motion is denied.

BRIGGS v. CENTRAL ICE CO.

(Circuit Court, N. D. New York.

No. 6,028.

February 20, 1893.)

PATENTS FOR INVENTIONS-INFRINGEMENT-ICE PLANERS.

In letters patent No. 367,267, granted July 26, 1887, to John N. Briggs, for an improvement in ice planers, the claim was as follows: "The combi. nation with the cutter head and racks, directly attached thereto, of the guides for both cutter head and the racks, arranged perpendicularly to the plane of the elevator, the pinions mounted on said guides, and enga ging in said racks, and the levers or arms for operating said pinions, * so that the depth of the cut may be directly and positively regu lated by means of the levers." Held that, in view of the prior state of the art, this claim must be limited to the precise mechanism described; and hence the patent is not infringed by a device wherein the cutter head is moved, and the depth of the cut regulated, by means of endless chains passing over sprocket wheels.

In Equity. Suit by John N. Briggs against the Central Ice Com pany to restrain the infringement of a patent. Bill dismissed.

Benjamin F. Lee, for complainant.

Edwin H. Brown and Frank L. Freeman, for defendant.

COXE, District Judge. This is an action for the infringement of letters patent, No. 367,267, granted to John N. Briggs, the com plainant, July 26, 1887, for an improvement in apparatus for planing cakes of ice. It is not a pioneer patent, but relates only to improvements on the apparatus for which letters patent No. 346,576 were granted to the patentee August 3, 1886, in which a similar ice planer attached to an ice elevator is described and claimed. The object of the patent is to facilitate the adjustment of the planing device described in the prior patent and to render it more effective in operation. The usual method of elevating ice from the river or pond to the storing house is by means of an elevator or railway pro

vided with endless chains carrying hold bars against which the cakes. of ice are lodged; as the chains move the ice is drawn up the incline. For various reasons it is expedient that the blocks of ice should be planed down to a uniform thickness and grooved to prevent the ice from freezing into a solid mass in the storage house. It is also advisable so to construct the planing device that it can operate upon cakes of different sizes and remove layers of frozen snow and other impurities, which often differ in thickness. It frequently happens that worthless blocks, or blocks of different thickness, or blocks having a crust of frozen snow on the top are forced up the incline in close proximity. Again, it is not an unusual occurrence for ice to become dislodged from the hold bars and slide down the incline with great velocity, and, if it comes in contact with the planer in its downward passage, it is liable to destroy the entire machine. For these reasons it is necessary to elevate and lower the cutter bar rapidly.

For several years prior to the application for the patent (November 22, 1886,) it had been customary to accomplish these results by means of ice planers attached to the elevator. These machines

were all provided with cutters and mechanism for raising and lowering the cutter carrying frame, consisting of pulleys and weights, levers, screws operated by bevel gearing, or other familiar equivalents for these old and well-known devices. The prior planers and the patented planer operate in substantially the same way. The blocks of ice are forced up the inclined elevator by the endless chains in the usual manner. The mechanism which holds the chisels or cutters is regulated by the operative in charge. As the ice is drawn upwards it encounters the cutters which penetrate the cakes to the required depth, removing any excess of thickness or impurities therefrom. The specification says:

"A little experience will enable the operative in charge quickly to determine at sight the best position for the cutter head during its operation on the approaching cake of ice, and said cutter head is under such perfect and positive control of the operative that he can easily maintain it at the position where its teeth first enter the cake of ice during the time required to effect the planing of said cake."

The only claim involved has reference to the problem of raising and lowering of the cutter bar by the attendant in charge. It is as follows:

"(1) The combination, with the cutter head and the racks directly attached thereto, of the guides for both cutter head and the racks, arranged perpendicularly to the plane of the elevator, the pinions mounted on said guides and engaging in said racks, and the levers or arms for operating said pinions, all constructed, substantially as described, so that the depth of the cut may be directly and positively regulated by means of the levers, as herein specified."

The

A claim much broader in scope was originally asked for. examiner rejected the broad claim as being anticipated by two prior patents and suggested a claim in the language quoted. The complainant acquiesced in this ruling. The defenses are lack of invention and noninfringement. In considering these questions it